How hard it is to fight a foreclosure depends to a great extent on where you live. If your state requires the foreclosing party to sue you—this is called judicial foreclosure—then it’s easier and less expensive to jump into the existing lawsuit than it is to challenge a nonjudicial foreclosure, which proceeds without court supervision. With a nonjudicial foreclosure, you’ll have to bring your own lawsuit. (If you don’t know which kind of foreclosure you’re likely to come up against, read Will Your Foreclosure Take Place In or Out of Court?)
This article focuses on challenging a judicial foreclosure.
In a judicial foreclosure, the foreclosing party must bring a lawsuit to get the foreclosure started. You will be notified of the foreclosure lawsuit when papers called a summons and complaint are delivered to (served on) you. The papers will advise you of the lawsuit and give you a period of time within which you must respond if you choose to contest it. And, significantly, the foreclosing party will have the burden of proving to the judge that the foreclosure is justified under the terms of the mortgage.
Answering the lawsuit. Whether or not you respond is up to you. Either way, the mortgage holder will be required to prove that the foreclosure is legal. Although, if you don’t respond to the suit, the chances are excellent that the foreclosure will go through. The proof will typically consist of a thick bundle of documents purportedly containing various papers that you signed when obtaining or refinancing your mortgage, like a mortgage (or deed of trust) and a promissory note. There will also likely be notices, signed agreements, internal accountings of payments both made and missed, and written statements under oath—called declarations or, if sworn before a notary public, affidavits—from employees with the foreclosing party or mortgage servicer who claim to have knowledge of:
As a general rule, if you don’t point out errors or omissions in the paperwork, the court will accept the papers as evidence that will support a foreclosure judgment and order for sale. If you do respond, you will have the opportunity to tell a judge why you think the papers are wrong and that foreclosure is not warranted. To contest the foreclosure, you must file an “answer” in most places. In it, you state your factual and legal arguments for opposing the foreclosure.
Proving your case. If you have evidence of your own regarding these issues, you also can file your own sworn statements. For example, if the foreclosing party claims that you missed five payments, but you can prove—typically with canceled checks—that you missed only one, you would submit a statement under oath to that effect and attach your canceled checks.
What happens after you file an answer. After you file your answer with the court, the foreclosing party may file a motion of summary judgment, which you must respond to, and the court will hold a hearing on the matter. The court will grant judgment in favor of the foreclosing party if there is no dispute as to the important facts of the case. But if the court denies summary judgment, the case will proceed toward a trial.
Discovery. Before the trial, discovery will take place. This is the process by which you and the foreclosing party ask each other for facts, documents, and other information prior to the trial. In a foreclosure, each side may ask the other to provide certain information (through a demand for production of documents, interrogatories, and depositions) that might help prove or disprove the right to foreclose.
Trial. At the trial, the foreclosing party must prove it has the right to foreclose. Then you must prove that the foreclosing party should not be permitted to foreclose. You will both present your cases, sometimes through witnesses who can be questioned by the judge and cross-examined by the other side. For example, if there is a conflict over missed payments, both you and an official from the mortgage servicer would testify, and the judge would decide which of you is most likely telling the truth.
At the end of the trial, the judge will either:
(To get an idea about how a typical judicial foreclosure might proceed, see Typical Judicial Foreclosure: Example.)
You’ll most likely need to hire an attorney to be successful challenging a foreclosure in court. So, if you think you might want to fight a judicial foreclosure, consider talking to a foreclosure attorney who can advise you about what to do in your particular circumstances.